Secretary of Labor v. Petro Chemical Insulation, Inc.

Plain-English summary

MSHA marked Petro Chemical Insulation's penalty assessment delinquent after an agency error made it appear that Petro had missed the 30-day contest deadline. The record showed that Petro mailed its contest on May 30, 2014, and MSHA received it on June 2, the date the assessment otherwise would have become final. The Commission held that the assessment never became a final order, dismissed the reopening motion as moot, and remanded for ordinary proceedings.

Decision snapshot

• Governing authority: 30 U.S.C. § 815(a)
• Outcome: The reopening motion was declared moot, and the timely contest was remanded for further proceedings.
• Key point: A timely penalty contest prevents an assessment from becoming a final Commission order, even if MSHA mistakenly marks it delinquent.

Full text (FMSHRC public release)

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SEQ CHAPTER \h \r 1 FEDERAL MINE SAFETY AND HEALTH REVIEW
COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

SECRETARY
OF LABOR,

MINE
SAFETY AND HEALTH  

ADMINISTRATION (MSHA)

v.

PETRO
CHEMICAL INSULATION, INC.

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Docket No.

A.C. No.

KENT 2014-606

15-00365-348946
V7D

BEFORE: Nakamura, Acting
Chairman; Cohen and Althen, Commissioners

ORDER

BY THE COMMISSION:

This matter arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C.    § 801 et
seq. (2012) (“Mine Act”). On June 25, 2014, the Commission received from Petro
Chemical Insulation, Inc. (“Petro”) a motion seeking to reopen a penalty
assessment that had appeared to become a final order of the Commission pursuant
to section 105(a) of the Mine Act, 30 U.S.C. § 815(a).

On May 3, 2014, Petro received a proposed penalty
assessment from the Secretary. On May 26, 2014, MSHA deemed the proposed
assessment to be a final order of the Commission when it appeared, due to an
MSHA error, that the operator had not filed a Notice of Contest within 30 days.
However, the proposed assessment did not become a final order of the Commission
until June 2, 2014. 

Petro asserts that it timely contested the penalty as it
mailed its contest on May 30, 2014, and its contest was received by MSHA on
June 2, 2014. The Secretary does not oppose the request to reopen and notes
that the operator had timely contested the penalty, but due to an MSHA error,
the case had been marked as delinquent.                                                                                        

Having
reviewed Petro’s request and the Secretary’s response, we conclude that the
proposed penalty assessment did not become a final order of the
Commission because the operator timely contested the proposed assessment. Section
105(a) states that if an operator “fails to notify the Secretary that he
intends to contest the . . . proposed assessment of penalty, . . . the citation
and the proposed assessment of penalty shall be deemed a final order of the
Commission.” 30 U.S.C. § 815(a). Here, Petro notified the Secretary of the
contest. This obviates any need to invoke Rule 60(b) of the Federal Rules of
Civil Procedure in order to consider reopening a final order.

Accordingly, the operator’s motion to reopen is moot, and
this case is remanded to the Chief Administrative Law Judge for further
proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29
C.F.R. Part 2700.

/s/
Patrick K. Nakamura

Patrick
K. Nakamura, Acting Chairman

/s/ Robert F. Cohen, Jr.

Robert
F. Cohen, Jr., Commissioner

/s/
William I. Althen

William
I. Althen, Commissioner